In simple terms, international parental child abduction occurs when one parent removes a child from one jurisdiction to another without the permission of the other parent or a court order allowing the removal. There is an international framework for dealing with these case under the Hague Conventions 1980 and 1996. The European Union also has legal framework under Brussels II bis. In England and Wales, the Family Law Act 1986 provides rules to be used between different jurisdictions within the UK. If none of these legal instruments applies, the English and Welsh High Court can exercise its inherent jurisdiction to secure the return of a child to their home country.
This can be a complex area of law at the best of times, but the Coronavirus pandemic has created yet more issues that need to be considered in abduction cases. Courts now need to evaluate potential risks and practical problems that could arise if children and parents are ordered to travel internationally during a pandemic. Not only are there new and difficult issues to be considered, but lawyers, judges and litigants have needed to do this while conducting cases remotely.
To try and assist with the practical side of child abduction cases the President of the Family Division issued guidance on 26 March 2020 (COVID-19: Temporary Amendments to the Practice Guidance on Case Management and Mediation of International Child Abduction Proceedings). This guidance highlighted that the UK central authority for child abduction cases (ICACU), the Legal Aid Agency, the High Court, the Cafcass High Court team and Reunite (who can provide mediation for these cases) are all working remotely. The guidance made provision for applications to be issued remotely and to be served before being sealed by the court. Mediation can take place by telephone or video and Cafcass can interview children to ascertain their wishes and feelings remotely. Hearings have been taking place remotely and there have been reported cases dealing explicitly with issues created by the pandemic.
One such case that was reported at the outset of the pandemic in the UK is Re PT (A Child) [2020] EWHC 834 (Fam). In this case the father sought the summary return of the child from England to Spain under the provisions of the 1980 Hague Convention. The mother defended the application on basis that the father consented to the child moving to England (Article 13(a) of the Hague Convention 1980), and that ordering a return would expose the child to grave risk of harm or an intolerable situation (Article 13(b)). The final hearing took place before Mr David Rees QC (sitting as a Deputy Judge of the High Court) on 27th March 2020 and was conducted remotely using Microsoft Teams. The Judge ordered the child’s summary return to Spain.
This case is of particular interest because the mother argued that the Coronavirus pandemic meant that the child could not return to Spain at the time and the hearing should be adjourned. The Judge considered the risks of the pandemic in relation to child abduction cases. The two factors he considered were: (a) that at the time of the final hearing the pandemic was more advanced in Spain than in the UK and, (b) the increased risk of infection that is posed by international travel during a pandemic. The Judge did not have sufficient evidence as to the relative risks of contracting the virus in the UK or Spain to make a finding as to which location was more dangerous. The Judge did acknowledge that international travel increased the risk of contracting the virus but did not consider that this was sufficient to amount to the ‘grave risk’ of physical harm required by Article 13(b) (this was in spite of the fact that the mother was more vulnerable as a result of being heavily pregnant). In light of the rapidly developing situation at the time, the Judge ordered a return within 2 days of the final hearing.
This case may have been the first in this jurisdiction to consider the risks of Coronavirus in the context of international child abduction, but there have been further reported cases since, and there will certainly be more. As the crisis develops and more is known about the risks of the virus it will be interesting to see how the judicial approach to similar cases evolves. In fact, the approaches the Judge took in the below cases, although considering different facts, is interesting to note in this context.
The case of VB v TR [2020] EWFC 28 came before Mr Justice Mostyn for a final hearing on 4th April 2020. The mother had removed the child from Bermuda to England. The father sought the child’s summary return to Bermuda. Owing to a lacuna in the law, this was not a Hague Convention, nor a Family Law Act 1986 case, but was conducted under the inherent jurisdiction of the High Court. The Judge determined that there should be a summary return to Bermuda, but needed to consider the issue of whether or not it was safe for this to happen at that point, particularly in light of the fact that the mother suffers from Crohn’s disease. The Judge observed that: “The mother is plainly in a vulnerable medical condition. I do not think that it is reasonable to expect her to travel back with the child until the UK government has stated that it is safe for people in vulnerable conditions to travel.” The Judge invited submissions on when the child should be returned.
A few days later another case came before Mr Justice Mostyn. The case of I and L (Children) [2020] EWHC 893 (Fam) was heard on 7th April 2020 and was conducted remotely by Zoom. In this case the mother came to England from South Africa with her two children. The mother and children were habitually resident in South Africa and came to England in December 2019 so the children could spend time with their father, who lives in England. In January 2020, when the children were in the father’s care he applied to make the children wards of court until such time as their welfare could be considered by the court. He also applied for a passport order and an order preventing the mother from returning to South Africa with the children. The children remained in England until the case came before Mostyn, J for the final hearing. The Judge determined that the children should return to South Africa but, as in the previous case, did not set a date for the return due to the effects of the Coronavirus pandemic. The Judge note that, at the time of the hearing, there were no flights currently between London and South Africa, and South Africa has bared entry to foreign nationals and all visas have been temporarily revoked. The Judge requested further submissions from the parties in respect of fixing a date.
Both VB v TR (A Child) and I and L (Children) demonstrate the problems faced by the court in circumstances where it is decided that children have been removed or retained unlawfully. Although the facts of all these cases are different it is still interesting to see the evolving judicial approach and the problems created by the pandemic as the situation develops. Practicalities may make a return simply impossible in some circumstances, but in cases where a return is practically possible the court will need to conduct a balancing exercise between the risks posed by international travel with the harm caused to the children of being retained unlawfully for a longer period.
By: Edward Nicklin (Solicitor)
